United States District Court, D. Delaware
J. Francella, Gregory F. Fischer, COZEN O'CONNOR,
Wilmington, DE, Michael J. Miller, Charles J. Vinicombe,
Barry Golob, Daniel P. Thiel, Lezlie Madden, Kristin Parker,
COZEN O'CONNOR, Philadelphia, PA Attorneys for Plaintiff
J. Baldwin, POTTER ANDERSON & CORROON LLP, Wilmington, DE
John E. Failla, Nathan Lander, Elise A. Yablonski, PROSKAUER
ROSE LLP, New York, NY Attorneys for Defendant
before the Court is Defendant's motion to reconsider
(D.I. 197) the Court's February 25, 2019 Opinion and
Order (D.I. 191-92), which granted (in part) Plaintiffs
motion for summary judgment and declared a life insurance
policy ("Policy") void ab initio as an
illegal wagering contract under Delaware law. Also before the
Court is Defendant's motion to file a reply in support of
its motion for reconsideration. (D.I. 224) According to
Defendant, the Court made a clear error of law by taking
judicial notice of disputed facts that were material to the
Court's decision. (See D.I. 197, 224) Plaintiff
responds that the Court properly took judicial notice of
indisputable facts, but even were this an error, the error
was harmless, as those facts were not material. (See
purpose of a motion for reconsideration is to 'correct
manifest errors of law or fact or to present newly discovered
evidence.'" Wood v. Galef-Surdo, 2015 WL
479205, at *1 (D. Del. Jan. 26, 2015) (quoting Max's
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999)). A motion for reconsideration
"must rely on one of three grounds: (1) an intervening
change in controlling law; (2) the availability of new
evidence; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice." Id.
(citing Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d
Cir. 2010)). "Reargument. . . may be appropriate where
'the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to
the court by the parties, or has made an error not of
reasoning but of apprehension.'" Id.
(quoting Brambles USA, Inc. v. Blocker, 735 F.Supp.
1239, 1241 (D. Del. 1990); D. Del. LR 7.1.5)). While the
decision on a motion for reconsideration is within the
discretion of the District Court, such motions "should
only be granted sparingly." Kavanagh v. Keiper
Recaro Seating, Inc., 2003 WL 22939281, at *1 (D. Del.
July 24, 2003) (internal citation omitted).
argues the Court committed legal error by taking judicial
notice of the 2001 Origination Agreement
("Agreement"). (D.I. 197 at 4-5) Federal Rule of
Evidence 201(b) permits a court to "judicially notice a
fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned." Under Federal Rule of
Evidence 201(e), upon making a timely request, "a party
is entitled to be heard on the propriety of taking judicial
notice and the nature of the fact to be noticed. If the court
takes judicial notice before notifying a party, the party, on
request, is still entitled to be heard."
Court did not err by taking judicial notice of the Agreement
because its existence and contents were not subject to
reasonable dispute; they could be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned. Fed.R.Evid. 201(b). Plaintiff attached an
unexecuted copy of the Agreement to its first motion for
summary judgment (D.I. 132-2 at 5 (LAV3467563)), and
Defendant did not contest the Agreement's existence or
contents - until the present motion for reconsideration.
(See D.I. 153 at 8-9; n.4) (Defendant arguing
Agreement is irrelevant to this case, but not questioning its
authenticity) To the contrary, Defendant admitted in briefing
that "U.S. Bank is a party to the proffered
'origination agreement' only in its capacity as the
trustee of an entity known as Coventry Life Settlements
Trust." (Id. at 9) (emphasis added) In
the Court's view, the existence and contents of the
Agreement were never in dispute in this case and it was not
improper to take judicial notice to that effect.
also argues the Court erred by taking judicial notice of
facts in Malkin and Van de
Wetering (D.I. 197 at 8), but the Court did no such
thing. The Court did not rely on Malkin or Van
de Wetering for the proposition that "Coventry
arranged financing for numerous individuals ... to procure
high-value life insurance policies with little to no risk to
the individuals" (D.I. 191 at 22), as this statement in
the Court's opinion is supported by undisputed facts in
the intrinsic record (D.I. 132-6 at 19-30; D.I. 132-7
(Sol's son testifying that Sol lacked financial means to
procure Policy herself); see also D.I. 132-3 at
88-89, 95-96 (Spalding testifying that she had used
Coventry's premium financing program in several other
the Court cited generally to Malkin and Van de
Wetering to support the proposition (also shown by
undisputed facts in the record (D.I. 132-6 at 19-30; D.I.
132-7)) that "at least some [(i.e. at least Sol)]
appear to have been financially strained" (D.I.
191 at 22) (emphasis added). The Court did not, as Defendant
argues, adopt as an undisputed fact the financial state of
the individuals in Malkin and Van de Wetering.
(See D.I. 181 at 44-45) The Court's reference to
Malkin and Van de Wetering neither invoked
judicial notice nor was it improper.
even if the Court had erred by taking judicial notice of the
Agreement or citing Malkin and Van de
Wetering, reconsideration is unwarranted because such
error would have been harmless. Defendant argues that the
Court's decision cannot stand without the alleged
judicially noticed facts (D.I. 197 at 4, 10), and that these
three documents colored the Court's entire view such that
it is "impossible to unscramble the egg" (Tr. at
16). But the principal holding Defendant quotes (i.e.,
"a reasonable factfinder could only find that the third
parties -Coventry, LaSalle, and/or SFG - did not act in good
faith") (D.I 197 at 4, 9) (quoting D.I. 191 at 18) was
made four pages before the mention of the Agreement,
Malkin or Van de Wetering, and relied on
undisputed facts in the record. The entire paragraph U.S.
Bank targets could be stricken from the Opinion and the
outcome would not be affected.
motion fails to demonstrate a clear error of law or fact that
would warrant reconsideration of the Court's prior
Opinion and Order. Therefore, the Court ...